A U.S. Supreme Court justice appeared to agree with President Donald Trump that he can fire appointed leaders of some independent federal agencies at will, after hearing arguments and questioning from government lawyers and former Federal Trade Commissioner Rebecca Slaughter on Dec. 8.
Slaughter is challenging his firing by Trump in a case that could redefine how more than a dozen agencies, including the Federal Energy Regulatory Commission, the US Nuclear Regulatory Commission and the National Transportation Safety Board, operate and shift power from Congress to the executive branch.
Lawyers for Slaughter, a Democrat, argued that she should be reinstated because of a 90-year sentence, Humphrey’s Executor v. United Stateshaving said that Congress had the authority to limit the president’s ability to fire independent agency heads for cause. Humphrey’s Executor the scope has been consistently limited by the decisions of the last two decades and the court’s conservative justices appeared to agree with the administration that barring Trump from firing trade agency commissioners except in cases of “inefficiency, dereliction of duty or malfeasance in office” violates the constitutional separation of powers between the three branches of government.
The current high court under Chief Justice John Roberts has shown a willingness to review cases that have stood as precedents, such as Chevron v. Natural Resources Defense Council — when the majority of justices felt that those precedent-setting cases were wrongly decided or improperly applied by later rulings.
Loper Bright Enterprises v. Raimondothe decision last year that overturned the Chevron ruling had broad implications for construction, as agency heads no longer had the ability to interpret the law to create policy for four to eight years, deciding the impact of what defines “waters of the United States” or other legal terms.
Slaughter’s decision may affect construction projects even more directly, as Trump has already removed members of the National Labor Relations Board and members of the Federal Trade Commission appointed by predecessors, although the commissions are generally made up of bipartisan members.
Under questioning, Attorney General John Sauer said the independent agencies are a “headless fourth branch” with limited government oversight and are generally “not accountable to the people.” He said that the precedent of 90 years, Humphrey’s Executor“must be annulled”. describing the ruling as a “decaying shill with bold and particularly dangerous pretensions”.
Sauer found an apparently unlikely agreement in Roberts, who prefaced one of his questions by saying that historical precedent “has nothing to do with what [trade commission] looks like today.”
Associate Justice Sonia Sotomayor, however, told Sauer that his argument would put independent agencies “at risk” without the benefit of congressional protection from executive action. “You’re asking us to destroy the structure of government,” he said, with Justice Elena Kagan adding: “You end up with massive, unchecked power in the hands of the president.”
Associate Justice Amy Coney Barrett answered their questions that Congress had a legislative veto, which — until the Supreme Court ruled it unconstitutional — allowed it to override decisions by administrative agencies. He asserted that independent agencies are not accountable to either Congress or the president, stating that it is now “something that Congress did not intend.”
A ruling from the high court is expected next June or early July.
